November 30, 2018

Points like this seem obvious to me, but a recent piece by Professor Frank Pasquale suggests that others may disagree. Professor Pasquale thinks we need to do a better job explaining why society should funnel us money, including in the form of better student loans or better loan forgiveness. He doesn't like the "neoliberal" take on education, which he depicts as too focused on markets and too willing to conceive of education as an input that allows students to compete in markets, as opposed to an intrinsic good. I don't think his arguments work well for higher education in general. I think they work particularly poorly for legal education.

First, regardless whether in theory it is wrong to conceive of education as an input, in practice it is what most law students want when they assume debt to write us checks. Evidence for this claim may be found in the way schools sell themselves. They do not sell themselves as places to find oneself or absorb intrinsic value. They promise a gateway to a rewarding and possibly high-paying job. That schools do not sell the intrinsic value story is a measure of the distance between what law students want (which schools target with advertising) and what they get, a difference I discuss here.

One could try to close the gap between what students want, and justifiably expect, and what law schools tend to provide in either of two directions: with candor in advertising or with changes to instruction. The gist of Professor Pasquale's argument is to preserve the gap but limit the harm it causes by externalizing the cost of education to reduce the cost to students, which one would expect to increase demand for our services. That does not close the gap, though it might funnel resources our way. What remains is to explain why taxpayers, most of whom never graduate college, should foot the bill.

Second, Professor Pasquale offers no good answer to this question. He does offer some diffuse consequentialist justifications: "Complex societies need a sophisticated, expanding education system. Education pays off, in social, cultural, and economic dimensions, over a lifetime. Markets, focused, as they are, on short term exchange and profit, will never optimize its production." In neoliberal terms (sorry), he asserts that schools spray public goods like a broken sprinkler. From a social perspective, it is a trickle-down theory, plain and simple. From a practical, personal perspective, it ignores tradeoffs, which is the focus of neoliberal analysis. Anyone who criticizes trickle-down economics when espoused by persons on the right should be wary of this assertion. Society as a whole would be far better served dismantling the barriers to entry in the provision of legal services, of which law schools are one part, than it would be funneling money to one of those barriers.

Third, the intrinsic value argument eschews accountability, and the lack of accountability is one of the big problems with legal education. If law schools just are good, no matter what, then there is no need to ask whether they are doing a good job, much less to tie funding or accreditation to things like bar passage or employment. But no one should believe that law schools just are good, no matter what. Schools may do good or bad jobs, just like any other institution. As noted above, schools pitch themselves in consequentialist terms and law schools behave as if they are in a markets because they are. Price discrimination in tuition is well known; there is no need to discount tuition to provide intrinsic value. That schools themselves practice neoliberal educational policy is a clue: neoliberal analysis gets closer to the heart of what is actually going on than do diffuse ideas such as intrinsic value.

Fourth, much of Professor Pasquale's argument rests on a combination of false opposites and ad hominem attack. Professor Pasquale dislikes some schools because they are for-profit. As a general matter, I agree that the for-profit education sector is a horror. But it is not a horror because it buys into a "`human capital' theory [that] has distorted the broader mission of real, nonprofit universities," it is a horror because it makes students worse off in very basic, neoliberal terms: lots of debt, few opportunities, little income. There are plenty of non-profit schools that do the same. The choice is not between unaccountable intrinsic value and predation; accountability without predation is possible.

The intrinsic value argument is appealing, as are all arguments that imply that one should be paid money with few expectations and little accountability. That is why it is dangerous, and an impediment to reforms that would make both students and society better off.

November 26, 2018

Defending the Ninth Circuit Court of Appeals, Chief Justice John Roberts assured the public that federal judges were not “Obama judges or Trump judges, Bush judges or Clinton judges,” but dedicated, independent judges doing their “level best.” Remarks like those of Chief Justice Roberts are rare. That is because the judiciary’s playbook has long dictated that judges decline to defend themselves against partisan or other specious attacks. California judges, however, may be suggesting a new approach.

This year, assistant public defenders challenged four judges of the San Francisco Superior Court in their reelection bids. The appellate justices with jurisdiction over the San Francisco trial courts publicly endorsed the incumbent judges. The endorsements were a first for the appellate justices and helped the four incumbents win reelection by large margins.

During the reelection campaigns, Appellate Court Justice J. Anthony Cline authored a letter to the editor denouncing the challengers’ “effort to defeat four of the most able, compassionate, and experienced judges in northern California simply because they were appointed by a Republican Governor in an overwhelmingly Democratic county [a]s an unmitigated act of political opportunism.” Justice Cline quoted one challenger as claiming that “a Schwarzenegger appointee doesn’t reflect the values of our community, it’s that simple.” Justice Cline sent the same message as Chief Justice Roberts—there were no Arnold Schwarzenegger judges or Jerry Brown judges but only dedicated, impartial judges.

The challenge to the four incumbent trial judges together with the high profile recall of Judge Aaron Persky, helped convince the California Supreme Court to amend Canon 5 the California Code of Judicial Ethics to expressly authorize judges to “solicit campaign contributions or endorsements for their own campaigns or for other judges and attorneys who are candidates for judicial office (emphasis added).” The amendment permits judges to solicit contributions and endorsements from anyone except subordinate judicial officers and court staff. So, judges may now hit the campaign trail and personally solicit funds for incumbent judges and lawyers seeking judicial posts. In other words, the California Supreme Court concluded that the political threat to judicial impartiality and independence was severe enough to justify the use of judicial prestige to level the partisan playing field.

The actions of Chief Justice Roberts and the California Supreme Court may signal a move away from the judiciary’s traditional inclination to remain aloof and refrain from defending itself. Maybe that luxury is a thing of the past.